eucatastrophe n. eucatastrophic [ < Gr. eu, "good" and catastrophe Coined by JRR Tolkien.] 1. (in a narrative) The event that shifts the balance in favor of the protagonist when all seems lost. 2. A happy ending.

May 2013

05/06/2013

“It may be that the best we can hope for when it
comes to utopias is that they be held at arm's length and regarded as aesthetic
constructions, in which various proportions are neatly worked out,
contradictions eliminated, and outside intrusions minimized. They are fictions,
artifacts of culture. And we should be wary if they ever become much more.” - Edward
Rothstein, Visions of Utopia

If you lived in the Mediterranean world in the first
century just after the time of Jesus, you were basically given a number of
alternatives to the Roman Empire that you were growing up in (and unless you
were one of the privileged few, you were looking for options. One option was to
hang on to Plato’s idea that societies could be made perfect by smart people
selected and educated to make your decisions for you. A second option was to
believe that perfection was not a state of society but rather a state of
non-wanting repose within an imperfect society. This option was called Stoicism and was best reflected in
the Manuel of Epictetus and the Meditations of Marcus Aurelius. A third option
emerged in the first century, largely promulgated by Paul, a Jewish convert to
Christianity and a proselytizer of a new religion we now know as Christianity.
This third option suggested that every person would find their lives in the
sacrifice of themselves to the best interests of others. “If you want to save your
life, lose it,” Jesus had said. "Be like him, Paul insisted.

In Lois Lowry’s novel, published 20 years ago now,
elementary and Middle School students get to explore these various options to
their own worlds and world views. The novel’s main character, Jonas, seeks to
find his way towards a happy adulthood by considering these three options. The
world he lives in, like Plato’s Republic, is a world constructed for him. It is
a world that grants security for a small down payment of life. “Thank you for
your childhood,” the elders say to the children as they enter adulthood in the
ceremony of twelve. They are about to enter into the next phase of their life –
a phase in which they will now give over the rest of their lives to whatever
purpose the elders (the philosopher kings) have determined for them. Jonas must
decide if he will play his part in the construction and maintenance of this
world or if he will throw himself into its machinery.

But Jonas is also asked to live with the
implications of that society’s need for order. If it is to run like a machine,
its citizens must be willing to make themselves into emotionless cogs in that
machine. Each individual must subject their emotions to daily scrutinizations and their
passions to medication. When Jonas’ family takes on the care of a third child
(only two are allowed) they must promise “not to become attached” – something the
Stoic philosophers demanded of all who would live “perfectly undisturbed lives.
When Jonas has his first “stirrings” as a boy, he must confess them and offer
them up to chemical remediation. Emotions and passions must be self-suppressed
in this society, as they were within the minds and hearts of Stoics in the
Hellenistic Age. “May I have relief-of-pain, please?” children in
Jonas’ world are taught to ask.

When Jonas is selected to be the new Receiver of
Memories, he is given the chance to “offer his life” for the community. His
task of accepting and carrying the community’s painful memories reminds one
almost directly of the Gospel narrative where Jesus is given the “honor” of
carrying people’s sins to the cross. In The
Giver Jonas literaly “lays down” his life to accept the painful memories
from the previous Giver, memories that he will not be able to share with anyone
– memories that will cripple him with empathetic pain that will render him incapable
of sharing community with his community. He literally becomes “the lamb that
takes away the sins of the world” in a sense.

In many ways,
Lois Lowry’s The Giver is about a
world where choices are removed from you so that suffering can be removed from
your life (unless you are "The Giver"). Her novel is a place where young readers can consider their ancient
options and make choices about them. Do they agree with Plato, Marcus Aurelius, or Paul? At its heart, Jonas’ world is a world of
no choices. Lowry’s novel is a place of many. Similarly, Jonas’ world is a
world of “sameness” and a world where one expects to feel no consequences to
choices which do not exist. And this is what Jonas rejects.

“Well . . .”
Jonas had to stop and think it through. “If everything’s the same, then there
aren’t any choices! I want to wake up in the morning and decide things!

This is the great apostasy and the reason for his
eventual exile. Ironically, The Giver
is often challenged by parents who feel that the book provides too many choices
to their children. Choices that they may wish their children not to consider;
among them we might mention, euthanasia, eugenics, birth control, abortion,
infanticide, surrogate parenting, totalitarianism, chemical castration, state
sponsored lying, lying to parents, theft, and running away from home.

We really have to
protect people from wrong choices.” “It’s safer," says the Giver.

“Yes,” Jonas agreed.
“Much safer.”

Lowry’s book challenges this notion that depriving
children of choices (or adults) is safer. It is, in some ways, a child’s
declaration of independence from living a scripted life.

“The next morning, for
the first time, Jonas did not take his pill. Something within him, something
that had grown there through the memories, told him to throw the pill away.”

In the end, (plot spoiler here) Jonas rejects all
three of these ancient options. He refuses the illusory harmony of an ordered
society because he comes to realize that it comes at the cost of conscience,
beauty, and adventure. He refuses to accept Stoicism because it comes at the
expense of love, attachment, and personal development. He refuses to accept the
role of sacrificial lamb because he believes that suffering must be shared if
joy is to be shared. Ultimately, Jonas makes his own way. We are left at the
end not really knowing if this can be done. And really, when you think about
it, when each and every reader considers living out their lives their own
unique way, they can not have any idea how it will turn out either.

Question
for Comment: How many choices do you think children
should be given by the time they are twelve? How many choices should be kept
from them? Why?

05/04/2013

Power. Who should have it, how much of
it, and with what limitations? Who should be protected from it and who should
be kept from having too much of it? Anyone who has had a relatively decent high
school Civics class will know that these were the questions that the framers of
the U.S. Constitution were most focused on. To a large extent, the framers
resolved many of the questions; As many as they could. But it was left to the
first legislature and executive branch to begin to hammer out the details. It
looked like a fair fight too. And then Chief Justice John Marshall stepped in
and made it clear that Americans had set up a trinity of conflicting assertions
rather than just a pair.

The book I just finished is entitled Landmark Decisions of the Supreme Court:
Select Opinions of Chief Justice John Marshall. And yes, it is just about
exactly what it says it is: About five hours of Supreme Court decisions. Each
case decision lasts about an hour I suspect, including Marbury v. Madison,
Fletcher v. Peck, Dartmouth College v. Woodward, McCulloch v. Maryland, and
Cohens v. Virginia. By the time
you are done (like anyone reading this is actually going to pick this book up)
you have a pretty good understanding of how John Marshall thinks about the
questions and how what he thinks has shaped American life for well over two
hundred years.

CASE ONE: Marbury v. Madison: In 1803, Marshall’s court heard the case of Marbury v. Madison.
The details of the case in brief are these. Knowing that he would be leaving
the White House to Thomas Jefferson, John Adams and the outgoing federalists
sought to shore up their party’s power by increasing the size and scope of judicial
branch and appointing as many Federal
judges to staff it before Jefferson took office. Adams commissioned many of
these judges in the days just before he left office. It was his Secretary of
State’s job to send those commissions out (ironically, John Marshall himself)
but Marshall did not get around to it. The commissions were thus on the desk
waiting for Jefferson to mail when he arrived. He refused to. Marbury was a
judge who thus lacked the paper saying he was a Federal judge and sued
Jefferson’s Secretary of State, James Madison to get that paper. And the rest
is history.

Marshall was
in a difficult position. If he ruled that Madison had to send the
commission, he could be pretty sure that Jefferson would order Madison not to. Jefferson
always believed that each state had a right to decide what the laws of
the U.S. and the Constitution meant in their jurisdiction. He similarly
believed that each branch of the government had to determine in their
own mind what the laws meant and what the Constitution meant. In his
mind, Marbury was not a judge until he received his “liscence” to be one. No license.
No judge. And he had no obligation to execute some other branch’s opinion on the
question. If Jefferson refused to comply with the Supreme Court’s decision,
Marshall knew he would get away with it and it would set a precident for future
“gettings away.”

If, on the
other hand, Marshall ruled that Madison did not have to deliver up the
commission. He would be stabbing his own party’s interests in the back and
demonstrating that the Supreme Court was merely the waterboy of the executive
(or legislative branches). So, he constructed a rather brilliant compromise.
First, he took Madison and Jefferson to the woodshed, publically insisting that
Marbury was made a judge as soon as the commission was signed and sealed with
the great seal of the U.S. Had the commission been sent and lost in the mail,
Marbury would have been a judge anyway and would have had every right to a copy
of the piece of paper that said so.

. . . It is . . . the opinion of the court, he writes in the decision

“That, by signing the commission of Mr. Marbury,
the President of the United States appointed him a justice of peace, for the
county of Washington in the District of Columbia; and that the seal of the
United States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the
appointment; and that the appointment conferred on him a legal right to the
office for the space of five years.

That, having this legal title to the office, he has
a consequent right to the commission; a refusal to deliver which, is a plain
violation of that right, for which the laws of this country afford him a
remedy.”

But then. He goes on to argue that the court over which he presided did not
have proper jurisdiction to decide the case unless it had been tried by some
lower court. HE argued that the Constitution only gave the Supreme court original
jurisdiction in some instances and that the case of Marbury v. Madison was not
in such a category as the Constitution had in mind. Though the legislature
might want the Supreme court to have
original jurisdiction over such a case, or though it might want lower courts to
have some jurisdiction not given it by the Constitution, the task of the
Supreme Court was to hold both executive and legislative branches to the
Constitution. If the legislature wanted something other than what the
Constitution intended, they must amend it rather than ignore it.

“If Congress remains at liberty to give this court
appellate jurisdiction, where the Constitution has declared their jurisdiction
shall be original; and original jurisdiction where the Constitution has
declared it shall be appellate, the distribution of jurisdiction made in the
Constitution is form without substance.”

In short, if the Supreme Court was going to be able to force Madison to give
Marbury his just right, the case would have had to come to the Supreme Court on
appeal. And it had not. And thus, using a bit of legal judo, Marshall lets
Jefferson win by slaughtering his more fundamental assertion. Constitution
trumps legislative branch Marshall asserts. Canstitution trumps executive branch
Marshall says. Constitution trumps Judicial branch Marshall says. Supreme Court
always has the last say on what the Constitution means.

“It is emphatically the province and duty of the judicial department to say
what the law is.”

And in the case of Marbury v.
Madison, the court ruled that first, Marbury had a right to his commission and
Jefferson was violating his oath to protect the Constitution by not giving it
to him. And second, that the Constitution had not given Marshall’s court the
power to force Jefferson to do his duty and Marshall would be violating his oath
if he tried to say it did.

“It is also not entirely unworthy of observation
that, in declaring what shall be the supreme law of the land, the Constitution
itself is first mentioned; and not the laws of the United States generally, but
those only which shall he made in pursuance of the Constitution, have
that rank.

Thus, the particular phraseology of the
Constitution of the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a law repugnant to
the Constitution is void; and that courts, as well as other departments,
are bound by that instrument.”

Marshall has accepted Constitutional limitations upon his own power here.
But in exchange, he has made it clear, that his branch will be the branch that
always gets the final say in where any branch’s limits of power are.

Jefferson’s vision of America was a vision of many empires, a large
confederacy of sorts where there would be one law but every State, every
branch, every locality, and every plantation owner decided for himself how it
would be interpreted.

As Jefferson himself put it
in in a letter to William Jarvis (later a Vermonter) in 1820,

“You seem ... to consider the judges as the
ultimate arbiters of all constitutional questions; a very dangerous doctrine
indeed, and one which would place us under the despotism of an oligarchy. Our
judges are as honest as other men, and not more so. They have, with others, the
same passions for party, for power, and the privilege of their corps.... Their
power [is] the more dangerous as they are in office for life, and not
responsible, as the other functionaries are, to the elective control. The
Constitution has erected no such single tribunal, knowing that to whatever
hands confided, with the corruptions of time and party, its members would
become despots. It has more wisely made all the departments co-equal and
co-sovereign within themselves.”

Marshall’s America was far more centralized. The Central government would of
course have Constitutional limits but where there were no limits, there would
be absolutes.

And that is just the beginning.

CASE TWO: Fletcher v. Peck (1810):First, the details. Native American Indians maintained sustainable
lives in North America by using all the resources available to them. They did
not need to settle onto specific properties and force nature to let them. They
had the luxury of living on lots of land and living anywhere on it that nature
said they could at any particular time. Unfortunately for them, there were lots
of Europeans interested in their land and few more interested than the State of
Georgia which, in the Yazoo Land Act of 1795, sold off millions of acres of
Indian lands to land speculators for almost nothing. Why? Because, as the
citizens of Georgia later discovered, most of the legislators were bribed to
vote for the act with profits and lands involved in it. i.e. by setting the
price low, they were promised much.

In short,
they cheated (as in,all the legislators but one according to the PBS
documentary about the case). The citizens of Georgia were, with good reason,
offended. And in the next election cycle, “voted the bums out” and retracted
the Yazoo Land Act.

Enter Mr. Fletcher
and Mr. Peck. Mr. Peck had bought land from Georgia. He had then sold it to Mr.
Fletcher. Fletcher wanted to know if the land that he had bought from Peck was
no longer his after the Georgia legislature taken back the Act that said it had
been. Ironically, both were land speculators and hoped that the court would
rule (either way) that the land was most certainly not the Indians’ any more.
Both wanted the U.S. Government on record defending the Georgia ownership and
right to sell the land.

At issue was
the whole question of private property and the sacredness of contract. Could a
state sell land under contract and then take it back and say “just kidding”?
Did the fact that the Yazoo Land Act was born fowl with corruption mean that
contracts made were invalid? Could a state, any state, just invalidate a
contract between two of its citizens just because it felt like it? Did it have
that power? Did the people of the United States want their Federal government
to protect them from the power of their own states sometimes? In Peck v.
Fletcher, Justice John Marshall answered “yes. Yes indeed!”

Marshall does
not equivocate:

“When a law is in the nature of a contract, when absolute rights
have vested under that contract, a repeal of the law cannot devest those
rights.

A party to a contract cannot
pronounce its own deed invalid, although that party be a sovereign State. A
grant is a contract executed.

A law annulling conveyances is
unconstitutional because it is a law impairing the obligation of contracts
within the meaning of the Constitution of the United States. . . .

if an act be done under a law, a
succeeding legislature cannot undo it. The past cannot be recalled by the most
absolute power.”

This notion that the Federal government could serve as the
people’s protector even against the powers of the State would come to be
regarded as a doctrine of the court even today. Generally, the courts took
Marshall’s predisposition to protect contracts from legislative interference
and used them to rather conservative ends.

“In Home Building & Loan Association v. Blaisdell (1934), as a
response to the massive economic dislocation of the Great Depression, the Court
ruled that the state could constitutionally alter the terms of any contract so
long as the alteration is rationally related to protecting the public's
welfare.”

Thus, Marshall’s court saw itself as a protector of the
people’s contracts. The court in the 1930’s saw itself as the protector of the
people. My own take on it is this (please note that I am not a legal scholar): Marshall’s
court said, “when you make an agreement, your government is going to make you
keep it.” Roosevelt’s court said “when you make an agreement that is not good
for you, your government is not going to make you keep it.” You can decide for
yourself what you think the court should be doing.

CASE THREE:Dartmouth College v. Woodward: Here is my layman’s explanation of the
issue between the Trustees of Dartmouth college and Mr. Woodward. Back in 1769,
the King had granted a charter to Eleazar Wheelock and his selected trustees.
They had a purpose in mind and it was largely focused on providing a place for
native American Indians to receive a Christian education. On the basis of its
stated purpose, many donors gave it money. Thirty years after the Revolution,
the State of New Hampshire attempted to rewrite the terms of that charter soas
to make the school a public school. Their argument was that charters were made
by sovereigns and sovereigns could change them at their will (you can see the
connections to Peck v. Fletcher already)

Could a State assert that it had powers above that of any
contract made between itself and any other party? If it did make that
assertion, could the people negatively affected by the resulting “breach of
contract” appeal to a power higher than the State (i.e. their Federal
government from protection from that State?) This is what is at stake in
Dartmouth v. Woodward. By now, you can probably imagine how the Supreme Court
under John Marshall ruled. Governments can change their laws, he asserted. But
they cannot unsay their agreements. And the Federal power of the United States
was big enough to put a state (in this case, New Hampshire) in its place if it
thought otherwise. Arguing for Dartmouth College, Daniel Webster made it very
clear that Dartmoth trustees were powerless victims of legislative abuse in
need of strong Federal protections against a bullying state “dictatorship.”

In Marshall’s decision, it is made clear that if New
Hampshire had wanted Dartmouth to be a public institution, they should have
made it so in the first place. By granting it a charter, they had made a
contract with all those who sacrificed to create the college in the first place
and they had no right to violate that contract after the sacrifice had been
made.

A state cannot, says Marshall, make a promise that starts
with the words “And we do also, for us, our heirs and successors, will, give
and grant to the said trustees of said Dartmouth College, and to their
successors forever …” and then decades later, after much has been contributed and
sacrificed for the place, say, “just kidding.”

Understand that John
Marshall was working here with the Hamiltonian vision of an America that wanted
business investment. Marshall is making it clear that if you make a contract
here in the United States, that contract will be upheld. You needn’t worry that
a state or a citizen of that state will be allowed to renege later and say “we
had our fingers crossed.” Marshall’s decision in Dartmouth v. Woodward sent a message that the Constitution of the
United States would back up property rights and contract agreements.

“Upon the whole, I am of opinion
that the above acts of New Hampshire, not having received the assent of the
corporate body of Dartmouth College, are not binding on them, and, consequently
that the judgment of the State Court ought to be reserved.”

In essence, in the United States, the Constitution will reign
supreme over the state governments and the Constitution protects the rights of
those who make agreements to expect their Federal government to protect those
agreements. If Antonio agrees to give a pound of his flesh if he defaults on a
loan in Venice, then Venice’s government will insist that he surrender that
pound of flesh if he does. And that is why people will come to Venice and do
business.

CASE FOUR:McCulloch
v. Maryland: As with the previous cases, McCulloch v. Maryland is
about power and specifically about the power of the states visa vis the federal
government. In and 1816, the 2nd
Bank of the United States was chartered. Alexander Hamilton’s original
intentions for the Bank (a private corporation chartered by the U.S. government
to hold invest the U.S. government’s money among other things) were overt. He
wanted to take the nation’s money (collected largely at its ports) and put it
to use making the economy (particularly the manufacturing part of it) as strong
as England’s. This involved giving it to men who had proven that they could
make money and tasking them to use it to make more.

A branch of the bank
was set up in Baltimore Maryland. Maryland’s legislature said to themselves, “There
is nothing in the U.S. constitution that says that the federal Government can
create a bank and since this bank competes with our State banks and is not
subject to our legislature’s will and control, we will tax it to death.” Now
mind you, they did not say that in so many words. The act of the Maryland
legislature just said that any bank NOT set up IN Maryland BY Maryland would be
taxed. But … the U.S. Bank was the only bank in Maryland that fell into
that category. That the law was not intended to “kill the bank of the U.S. was
an obvious subterfuge.

It would be difficult
to overstate the importance of Marshall’s decision in this case. It may be his
most important. First, Marshall asserted that the First Bank of the U.S. was
enacted by pretty much the same people that created the Constitution itself and
if they saw it as Constitutional, the burden of proof lay on those who opposed
it now to argue why the Second Bank of the U.S. should not be seen as Constitutional.
(I suspect that modern jurists would use the Latin term stare decisis
from: Stare decisis et non quieta movere: "to stand by
decisions and not disturb the undisturbed.")

Secondly, Marshall
insisted that states like Maryland had not created the Federal government. The
people of all the States had. And thus, the Federal Judiciary, created
by all the people of all the states had the authority to determine what
the Constitution they made allowed its government to do. And they would do so
through the kind offices of the Supreme Court and in no other way.

Thus, thirdly, that
the “necessary and proper clause” of the Constitution allowed the Federal
government to do many things not specifically granted in the constitution. "Let
the end be legitimate, let it be within the scope of the constitution,” he said
of Federal legislative power,

“and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are
constitutional.".

This is the embedding of Hamiltonian loose constructionism
into legal precedent. A Federal power does not have to be enumerated to be
implied. And if implied, it is as though it were enumerated. And this is why
you may be taxed in order to pay for a Federally guaranteed healthcare coverage
(the power to tax for such purposes is implied) though you could not be “fined”
for not getting said coverage (that power is not implied according to the
Roberts Court).

It is worth noting that southern states seem to have never
accepted the argument that the federal government was a creation of the people
and not the states. Abraham Lincoln would go to war with them over that
disagreement.

John Marshall served notice in this case that the States were
not the parents of the Federal government. The people at large were. I quote at
length here.

“The instrument [The Constitution] was
submitted to the people. They acted upon it in the only manner in which they
can act safely, effectively and wisely, on such a subject -- by assembling in
convention. It is true, they assembled in their several States -- and where
else should they have assembled? No political dreamer was ever wild enough to
think of breaking down the lines which separate the States, and of compounding
the American people into one common mass. Of consequence, when they act, they
act in their States. But the measures they adopt do not, on that account, cease
to be the measures of the people themselves, or become the measures of the
State governments.

From these conventions the
Constitution derives its whole authority. The government proceeds directly from
the people; is "ordained and established" in the name of the people,
and is declared to be ordained,

in order to form a more perfect
union, establish justice, insure domestic tranquility, and secure the blessings of liberty to themselves and to
their posterity.

The assent of the States in their
sovereign capacity is implied in calling a convention, and thus submitting that
instrument to the people. But the people were at perfect liberty to accept or
reject it, and their act was final. It required not the affirmance, and could
not be negatived, by the State Governments. The Constitution, when thus
adopted, was of complete obligation, and bound the State sovereignties. . . .

The Government of the Union then
(whatever may be the influence of this fact on the case) is, emphatically and
truly, a Government of the people. In form and in substance, it emanates from
them. Its powers are granted by them, and are to be exercised directly on them,
and for their benefit.”

This is why Lincoln later asserted that States could not secede
from the union. If the people did not like their Federal government, they had
one remedy supplied to them by the Constitution; elect someone else next time.

To Marshall, the government once given powers, had every
right to assert them.

“If any one proposition could
command the universal assent of mankind, we might expect it would be this --
that the Government of the Union, though limited in its powers, is supreme
within its sphere of action. . . . The Government of the United States, then,
though limited in its powers, is supreme, and its laws, when made in pursuance
of the Constitution, form the supreme law of the land . . .”

The Federal government does not have to limit itself in any
way that the Constitution does not limit it. The Constitution is, therefore, to
be seen as a somewhat elastic in its sovereignty. As Marshall writes:

“Among the enumerated powers, we do
not find that of establishing a bank or creating a corporation. But there is no
phrase in the instrument which, like the Articles of Confederation, excludes
incidental or implied powers and which requires that everything granted shall
be expressly and minutely described.”

Once given a power, surely the people would not want to embarrass
the government by telling that it could not use essential means to affect its
purpose? If the people wanted some end and the creation of a National Bank was
the means to it (and there is no Constitutional denial of the means) then the
people can not allow a State to nullify or “kill” the means. We all live with
the implications of that assertion. It is why we generally think of ourselves
as “Americans” and not “Vermonters” or “Virginians.”

“We are unanimously of opinion that the law passed by the
Legislature of Maryland, imposing a tax on the Bank of the United States is
unconstitutional and void.”

Sorry Maryland. But cheer up. Other states will get their
turn being on the receiving end of this doctrine.

CASE FIVE: Cohens v. Virginia (1821): “Lotteries are a tax on people who
are bad at math” I always say. But they are a great way for a government to
make money off people without taxing them. For that reason, the U.S. government
decided to allow the sale of lottery tickets in the District of Columbia. The
Cohen brothers decided that they could make more commissions if they sold some
of the tickets in Virginia, even though lotteries were illegal in Virginia. No
doubt they reasoned that they did not need to get state permission to sell lottery
tickets approved by the federal government. Virginia disagreed and, not
surprisingly, its Virginia State Supreme Court backed up the legislature and
fined the Cohens. They appealed the State Supreme Court decision to the Supreme
Court.

Virgina basically
said, “nuh uh.” From their perspective, the Cohens had violated a STATE law.
The case went to a STATE court. The Federal Supreme Court only had jurisdiction
over violations of its own laws. Thus, no appeal to a State Supreme
Court decision could be made in a case about a State law. “Nuh-uh” said John
Marshall in this decision. And he has a point. If a state did not like a
Federal law, it could pass its own law in opposition to it. It could thus veto
any federal law by asserting judicial supremacy over any case involving both
State and Federal law.

Marshall minces no
words:

“There is certainly nothing in the circumstances under which our
Constitution was formed, nothing in the history of the times, which would
justify the opinion that the confidence reposed in the States was so implicit
as to leave in them and their tribunals the power of resisting or defeating, in
the form of law, the legitimate measures of the Union.

The Constitution had no intention of creating a Federal government
less powerful than its constituent parts; "a hydra in government from
which nothing but contradiction and confusion can proceed."

“The American States, as well as the American people, have
believed a close and firm Union to be essential to their liberty and to their
happiness. They have been taught by experience that this Union cannot exist
without a government for the whole, and they have been taught by the same
experience that this government would be a mere shadow, that must disappoint
all their hopes, unless invested with large portions of that sovereignty which
belongs to independent States. Under the influence of this opinion, and thus
instructed by experience, the American people, in the conventions of their
respective States, adopted the present Constitution.”

Sorry Virgina, but
the Supreme Court does have the obligation to consider any law that
might infringe upon the Constitutional powers of the national legislature to
make law.

In this case, the
Cohen brothers were determined to be outside of the purpose of the law when
they sold lottery tickets in a State that forbid them from doing so and the
decision of Virginia was upheld. But at the cost of Virginia's primary argument (that states are sovereign over their own State laws).

Marshall is gifted
at that sort of thing.

Of John Marshall, John Adams later said,

“My gift of John Marshall to the
people of the United States was the proudest act of my life. There is no act of
my life on which I reflect with more pleasure.”

Question for Comment: Do you think you would be better off today
if the State you live in stopped interfering with your life as much as it does?
Do you think that you would be better off if the federal government would stop
interfering with your state government as much as it does?